Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-26
o0URT OF APPEALS.
-, Of Decisions Rendered at
slp'P'Ip,r- esens Tyler sitting of the
IO' Court OF Appeals.
.n In Some Long Delayed
lcaOn judgments Reversed and
Osuses Remanded.
.a Of the Gazette

.0ondenoe of the Gazette.
Oorrssp" Tx, Nov. 23.-John Burleson
3IL' Gate: appeal from Taylor county.
q tp' he trial of this case the state
CP'l -, that the defendant attempted TO
F". ~ alleged forged instrument to an
PISS .,rtv thsn the one named in the in
o1 .,a mi and st another time and place.
de'u This testimony was admissible
Bel1. show the intent of the defendant
ong ...mntipg TO pass said instrument to
n.rty named in the indictment, and
p' P sarrt should have explained to the
ps w its charge the purpose for which
Il! admissible, and because of the
"" ~. failure to do so the judgment is
o0'l' .od and the cause is remanded.
Ei l,-gs Carroll VS.. the State; appeal
OSy Us7oastone, Assault with intent to
fom ait r.ne can only be committed by
e0l n force or attempted force. In the
bsfore Us, even If we c0ncede that
a. .',sot was the party in Mrs.
sgPP,TnGs+one's room when she awoke and
L,.D.917ed. still that does not sustain the
S'Iriction. because he used no force, no
s.sS--sstening gesture, simply called her
.3ron name, and when she screamed fed.
s,c.rse the facts are insufficient to es-
p,Itb an assault with intent to rape,
80 i1dgment is reversed and the cause
..aan,pded. White, P. j.
Tr,nk Myers vs.. the S ate; appeal from
r,,ior. This is sn appeal from couvic-
.o1 for theft To establish the allega-
.on n ownership of the alleged stolen
.n;msl the only evidence offered was 8
sartidsd CODY of the record of the brand
itbe alleged owner. II was shewn that
.ss recorded brand and the brand found
Tnon the alleged stolen animal were es-
ssntislly different. Held: While re-
corded brand is sufficient evidence of
cwnership, sucn brand and the brand
ionnd upon the animal mus
correspond and be identlcally
tse same. and the brand upon the animal
mist even be upon the particular part OF
he body designsted in the record or 1t
uiu not afford sufficient evidence OF own
ersbip unless the discrepancy is explained
satisfactorily by other evidence. We are
0l the opinion that the evidence does not
move the allegation of ownership, and
il therefore insufficient to sustain the
conviction. There was evidence tending
n show that the defendant killed the al
Legged stolen animal for beef, and that he
did so by the direction of one Grounds,
whose hired hsnd he was at the time. If
this be true fraudulent intent would be
wanting, and the court should have sub
mitted the matter to the jury under prop
er Instructions Because of the INSULT
cheney of the testimony to prove the own
ership, and of the error indicated, 1udg-
ment is reversed and the cause is re-
msnded. Wilson, J.
Henry Borders vs.. the State; appeal
from Ellis. 1t is not an offense against
the law to bet or wager at game played
+, With dice or dominoes at private resi-
denCe. We are Of the opinion that the
conviction in this case is not sustained
By the evidence, the playing and betting
having occurred at private residence.
The Judgment is reversed and the cause
remsnded. Wilson, J:
Brown Manufacturing Company vs. S
3. Watson; appeal from Ellis. This was
Its value, SII0. At the time the writ Of
sequestrstion was levied said phaeton
WsS held by Ousley & Co as C aimant
under affidavit and bond for the trial of
the right Of property. Appellants moved
to qussh the sequeSCration prCc 9edings-
pleaded general denial and specially thai
the Dhseton was in custodia legis in the
trisl Of the right of properly. The mo-
ton to qussh was sustained and the
sequestratiOn dismissed The special
pies was oyerruled and judgment rem
dered in favor of Watson r The pbs ION
and IN the alternative for sos, It's vsIue
and cost OF suit. Held: The suit was
properly treated in the court below as an
action for the pt8ton or its value, and
consequently the quashsl Of the seques-
Ualon did not dispose of the suit for the
value OF the property. In l. Gierse VS..
Fierce this court declared that property
held by claimant under aft iavit and
pond for the trial of the right of said
property was in custodia legis, snd as
slca was not subject to levy under
execution. A different rue was suisse
qaently amour Ced by cur Supreme court.
lei EeX.367 and the case OF LIE Gierse VS.
Fierce WILL DC hereafter considered over
tued for the sake of harmony. There
oeing no error in the judgment it Is
smFmed. White, P J.
John Burks vs.. the State; iappeal from
daylor. Appellant in this case sets up
ae plea OF former conviction. The jury
we're not Instructed, as they should have
Ueen, mat they must say IN their verdict
1S' Inc matters alleged in said plea were
nue or untrue. Held: 1t has been re-
PeaeoIy held that when 8 specisl plea is
SUBMITTED to the jury the verdict must
expressly determine whether the plea is
uus or untrue, aud thst an omission to
" mo Is error for which the conviction
IuSt De set aside. In view of another
VIA Oh the case, we will ssy that 10 our
U U the special plea of former con-
S' nSon was notsustaiDed by the evidence
t Sllu former conviction was for ate mpt-
.-s 70 pass forged instru nent in writing
!" olrerent person than the person
ssauleu IN the iudictme n, and, as the evil
o o'soe proves, at DIFF rent time and
pace II was proper to admit in evidence
s-1s the defendant ate pied to pass
-" u instrument on the same
oI out al different time And
t b'acs and to another person, TO prove the
t o.S intent with respect TO the at
Up Ip1 tor which he was On iris, but the
~ l7lllog TO restrict it in Its charge to
a. Jury to the purpose for which it was
united, committed q reversible error
~ Sesa not excepted to. It was not error
all, lue cours TO instruct the jury that the